April 06, 2009

Legal Theory Lexicon: The Reasonable Person

Introduction

Today's Legal theory Lexicon is about the "reasonable person."

The notion of a "reasonable person" usually makes its first appearance in the Torts
course. The context, of course, is the tort of negligence, where the
"reasonable person" is used to define the standard of care that
triggers liability for unintentional harms. But what makes a
"reasonable person" reasonable? The concept of the reasonable
person is not limited to torts, however. The reasonable person makes
appearances in criminal law, contract law, and elsewhere. As usual, the
legal theory lexicon introduces the "reasonable person" for the law
student with an interest in legal theory.

A cautionary note. The
word "reasonable" is used in a wide variety of legal contexts, some of
which have very little to do with the reasonable person. In Antitrust
law, for example, the notion of "an unreasonable restraint of trade" is
crucially important, but this topic does not, at least on the surface,
have anything to do with the reasonable person of torts and criminal
law.

The Reasonable and the Rational

This is, after all, Legal Theory Blog, so I hope you will
forgive me for starting at a fairly high level of abstraction.
"Reasonable" and "rational" are used in many different contexts and
have a variety of meanings, but when I think about the "reasonable,"
the first thing that comes to mind is the distinction between the reasonable and the rational that was articulated by W.M. Sibley in a 1953 article but was made famous by John Rawls.

When the rational is defined in contradistinction to the
reasonable, rational usually refers to instrumental rationality--that
is, the rationality of ends and means. Given that an agent has end X,
it is rational for the agent to engage in action Y, only if Y will lead
to X. Instrumental rationality is relative to the ends of a particular
agent, and may (but need not) consider the interests of others. Thus,
it may be instrumentally rational for me to steal from you, if you have
something that I want and I have good reason to believe that I won't
get caught. But it may also be rational for me to help a stranger, if I
happen to have the welfare of others as my end.

When we contrast the reasonable with the rational, the notion of
the reasonable goes beyond instrumental rationality. It may be rational
for me to steal from you, but unreasonable for me to do so. Why not?
Well, that is quite a question. One answer is based on the idea that
the reasonable is, in some way, connected to what could be justified to
others. Another idea is that the reasonable is in some way specified by
that to which others would consent.

So as we are thinking about the "reasonable person," it is
important to distinguish her from her cousin, the "rational person."
The rational person may or may not take the interests of others into
account. To be a reasonable person, however, is to consider the
interests or viewpoints of others--to give them their proper due.Of course, all of this is terribly vague! What does it mean "to give the interests of others their proper due"?
How much is enough? How much is too much? So far, we have only the
general concept of the reasonable person. In order to make use of the
"reasonable person" in the law, we need a particular conception of the
"reasonable person"--a set of standards or criteria that will enable us
to sort the reasonable actions from the unreasonable ones.

Subjective and Objective Reasonableness

One more preliminary distinction--much is made of the difference
between subjective and objective reasonableness. For example, we might,
for example, distinguish between the "reasonable person" and the
"reasonable intoxicated person" or the "reasonable person with a
developmental disability" or the "reasonable person with a hot temper."
Usually, we call the reasonable-person standard an objective
standard, signifying that the we are not taking the particular
characteristics of defendants in tort or criminal actions into account
when we ask whether they met the relevant standard of care. Some
critics of the reasonable person standard argue that its "objectivity"
is a mask for a bias that favors some groups over others. On this, see
Mayo Moran's Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard.

Learned Hand and the Reasonable Person as Cost-Benefit Analyst

The conception of reasonableness that is most familiar to
contemporary law students was introduced by Judge Learned Hand in the
famous Carroll Towing case.

[T]he owner's duty, as in other similar situations, to provide
against resulting injuries is a function of three variables: (1) The
probability that she will break away; (2) the gravity of the resulting
injury, if she does; (3) the burden of adequate precautions. Possibly
it serves to bring this notion into relief to state it in algebraic
terms: if the probability be called P; the injury, L; and the burden,
B; liability depends upon whether B is less than L multiplied by P:
i.e., whether B less than PL.

The meaning of the Learned-Hand B < P * L formula is very much disputed, but one powerful reading of Carroll Towing
is that it adopts cost-benefit analysis as the test for negligence. The
reasonable person, so the story goes, analyzes the costs and benefits
of her actions and does not act in such a way so as to impose costs
that are not justified by their benefits. Economists might associate
the Hand formula with what the economic concept of efficiency, and
specifically Kaldor-Hicks efficiency. (Follow this link for an explanation.)

Even if the Learned Hand formula is best interpreted as
employing cost-benefit analysis or the economic idea of efficiency, it
does not directly follow that the purpose of the law of negligence is
itself to promote the most cost-beneficial consequences. It might be,
for example, that a strict liability regime (rather than a negligence
regime) will produce the best consequences. There are two different
questions regarding the relationship between cost-benefit analysis and
the reasonable person. (1) Does the reasonable person standard employ
cost-benefit analysis as the criterion for negligence?, and (2) Does
cost-benefit analysis support the choice of negligence (as opposed to
strict liability or no liability) as the rule governing nonintentional
torts? Once the questions are separated, it is clear that they are
different. It might be that the law employs a cost-benefit (Learned
Hand) test as the standard of care in negligence cases, but that this
approach itself is not the best when judged by cost-benefit analysis.

Immanuel Kant and the Reasonable Person as Respecter of the Interests of Others

Although many scholars interpret the Learned Hand formula as an
endorsement of an economic approach to the reasonable person, others
reject this move. The Hand formula can also be interpreted as
reflecting an argument of principle (or fairness). At a very high level
of generality, we might say that the reasonable person treats others
with respect. This approach to the reasonable person is roughly
correlated with the deontological approach to moral philosophy, most famously associated with Immanuel Kant and his notion of a categorical imperative.
The reasonable person, we might say, acts so that the maxim of her
action (the principle upon which she acts) could be willed as a
universal law--or to be put it differently, the reasonable person
treats others as ends-in-themselves and not only as means. In this
vein, Ronald Dworkin has argued that the Learned Hand formula can be
understood as reflecting the moral equality of persons.

Yet another approach to the "reasonable person" might be derived from Aristotelian moral theory (or virtue ethics)--in
particular from the idea that the focal standard for morality is the
"virtuous agent," i.e. the person who posseses the moral and
intellectual virtues. What are these virtues? The moral virtuous include characteristics such as courage, good-temper, and temperance. The intellectual virtues are sophia (theoretical wisdom) and phronesis (practical wisdom). A difficulty with an aretaic approach to the reasonable person standard is that this standard seems too demanding. The Aristotelian person of virtue is a phronimos, not a person of average ability but rather possessed of an extraordinary capacity to evaluate and choose.

And the winner is . . .

As you might guess, this is the point at which the Legal Theory Lexicon
runs out of gas. Appropriately so. For this is a perennial question in
legal theory--one for which simple and off-hand answers are hardly
appropriate. But here is one more thing to consider. The contest
between various interpretations of the "reasonable person" takes place
at two different levels. First there is the level of fit. Which
conception of the "reasonable person" is most consonant with the way
that idea is used in the law? Second, there is the level of
justification. Which conception of the "reasonable person" is supported
by what we know about moral philosophy and political theory? And of
course, it may turn out that the answers to these two distinct
questions diverge. The best conception of the reasonable person may not
be the conception that is implicit in the law of torts. And here is
another complication. The reasonable person may wear a different suit
of clothes to a tort case than she does to a criminal law case. What then?

Conclusion

If you are a first-year law student reading this post, it is
likely that you have recently or will soon make the acquaintance of the
reasonable person. Understanding the reasonable person will not only be
important to your study of torts and criminal law; the ideas with which
you grapple in cases like Carroll Towing ramify throughout the
law. Being able to articulate and argue about the proper interpretation
of the reasonable-person standard equips you to understand debates
about efficiency versus fairness (or deontology and consequentialism)
that are fundamental to contemporary legal theory.